Conducting Forensic Examinations on the Road: Are You Practicing
Your Profession Without a License?

Robert I. Simon, MD, and Daniel W. Shuman, JD

Psychiatrists and other mental health professionals retained in
civil or criminal litigation are frequently required to travel to a
state in which they are not licensed to perform assessments and offer
testimony. Adverse professional and legal consequences may await the
unwary peripatetic forensic expert. Failure to address local practice
requirements may result in disqualification to testify as well as civil
and criminal liability, professional disciplinary action, and denial of
liability insurance coverage. In this article, the authors address
preventative measures to avoid charges of practicing without a license
when the forensic expert crosses state lines.

J Am Acad Psychiatry Law 27(1): 75-82, 1999

Forensic psychiatry and psychology are burgeoning
subspecialties. One factor driving this increasing interest in forensic
practice is the recent economic upheaval in psychiatric and
psychological practice. However, litigation is often alien terrain for
even the most experienced psychiatrist or psychologist, who may fail to
grasp the irreconcilable conflict between the therapeutic and forensic
roles.1 The psychiatrist's and psychologist's
professional compass, oriented by everyday clinical practice, may fail
to provide reliable direction in the legal setting.

Apart from this important professional disorientation, there is also
the potential for geographic dislocation. A psychiatrist or
psychologist who is retained in civil or criminal litigation may be
required to travel to another state to perform an assessment or to
offer testimony where she or he is not licensed to practice. Most
psychiatrists and psychologists are unaware of the adverse professional
and legal consequences that may await them at the end of this road well
traveled. If they fail to address local licensure requirements, they
may not be permitted to testify, may incur civil and criminal
liability, or may face professional disciplinary action, all of which
may be reported to the National Practitioner Data Bank (for all health
care practitioners).2 They may also suffer denial of
liability insurance coverage for suits brought while practicing without
a license. This is not a matter to which the party who retained the
expert can consent. If expert witnesses are required by statute to
comply with state licensure laws, and failure to comply with these laws
is a criminal offense, then the rule that a party may not give valid
consent to a criminal act (e.g., one cannot consent to be murdered)
precludes a party from consenting to the nonapplication of licensure
laws to an expert witness.

These outcomes may strike the unwary psychiatrist or psychologist
acting in a forensic rather than a therapeutic realm as unfair and
draconian. Although there are scattered reports of only a small number
of forensic experts having encountered out-of-state licensure
challenges, the more forensic experts respond to interstate demands for
their services, the more likely that these issues will arise. Thus,
psychiatrists and psychologists not licensed where they perform
forensic services may experience increased exposure to charges of
practicing without a license.

Medical and Psychological Practice Regulations

The language used in defining the practice of medicine and
psychology for the purpose of regulation varies from state to state.
However, there are elements common to each state. For example, all
definitions of the practice of medicine include some variation of
diagnosis and treatment. The Maryland Medical Practice
Act,3 typical of such acts, contains the following
definition: "'Practice medicine' means to engage, with or without
compensation, in medical: (I) Diagnosis; (ii) Healing; (iii) Treatment;
or (iv) Surgery." The purpose of an independent psychiatric
examination is to arrive at a clinical formulation or a diagnostic
conclusion. Thus, performing an independent psychiatric examination
should be considered the practice of medicine, even if no
doctor-patient relationship is created nor any treatment provided.

Not all acts constituting the practice of medicine by physicians not
licensed in that state, however, are necessarily proscribed by state
regulatory schemes. State medical licensure laws contain a number of
exceptions permitting the practice of medicine without an in-state
license. For example, the Maryland Medical Practice Act4
provides for the following relevant exceptions for out-of-state
physicians who may temporarily practice medicine without a license:

(2) A physician licensed by and residing in another jurisdiction,
while engaging in consultation with a physician licensed in this State;

(4) A physician who resides in and is authorized to practice
medicine by any state adjoining the State and whose practice extends
into this State, if: (i) The physician does not have an office or other
regularly appointed place in this State to meet patients; and (ii) The
same privileges are extended to licensed physicians of this State by
the adjoining state.

The exception for a physician licensed in another state who
consults with a physician licensed in the state is not difficult to
satisfy, but it may add expense for the retaining attorney and raise
undesired questions about the believability of the nonresident
"consulting physician." Most states allow a physician who is
licensed in another jurisdiction to conduct an examination under the
supervision of or in consultation with a locally licensed physician.
Whenever possible, the simplest solution is to have the out-of-state
litigant travel to the forensic psychiatrist's office for the
examination.

Many states make exception for physicians from adjoining states to
practice medicine through reciprocity arrangements. However, this
provision should be confirmed rather than assumed before entering an
adjoining state to conduct an assessment without a license. Generally,
states allow physicians from adjoining states to conduct examinations
under the supervision of or in consultation with a locally licensed
physician or some similar arrangement. The Maryland exception for
physicians practicing in adjoining states that extend into the state
where they are offered as an expert seems likely to present fewer
problems in the forensic setting. These issues need to be addressed
independently of the testifying issues. Physicians with multi-state
practices in adjoining states are obligated to address these issues for
the conduct of their nonforensic practice.

The practice of psychology, like the practice of medicine, is defined
in relatively similar fashion from state to state. Typical of the
definition of psychological services is the Texas statutory scheme,
which includes "evaluation, prevention, and remediation of
psychological, emotional, mental, interpersonal, learning, and
behavioral disorders of individuals and groups."5 Thus,
according to the commonly understood usage of this language, evaluating
the mental or emotional condition of a litigant to offer a psycholegal
opinion is the practice of psychology. Although Texas has no provision
for an out-of-state-licensed psychologist to consult with a
Texas-licensed psychologist, it does permit psychologists who are
licensed in another state to obtain a temporary license to practice in
Texas.6

Central to resolving the issue of out-of-state licensure is the
fundamental question: do forensic activities constitute the practice of
medicine or psychology? Logically, resolution of this question is
fundamental to the determination of whether licensure within the
particular state where the forensic functions are provided is
necessary. Only if forensic activities constitute the practice of
medicine or psychology is licensure a relevant issue; if licensure is
not required for forensic activities, then sanctions for failing to
have an in-state license oddly might befall only those who have
bothered to obtain a license in their home state. Satisfying the
licensure requirement of one's own state but not of another state
presents lesser-order concerns than not satisfying the licensure
requirements of any state. Satisfaction of that licensure requirement,
only if even in one's own state, tells us that at least one agency has
considered minimal requirements of education, training, and character
for licensure.

If forensic activities constitute the practice of medicine or
psychology, the impact of these licensing laws on expert witness
qualifications is an important interrelated question. If the expert's
field of expertise is subject to licensing or certification under state
law, is licensing or certification a requirement for qualification as
an expert witness? There are two distinct lines of cases on the
relationship between licensing laws and qualifications to offer expert
testimony. One line of cases views the possession of the relevant
professional license as a prerequisite to qualify as an expert
witness.7 Under these cases the line is clear: no license,
no qualification. This line of cases is consistent with the state's
decision to restrict certain activities to persons who possess a
license and to impose criminal penalties and injunctive relief on those
who perform these activities without a license. Permitting courts to
ignore these licensing schemes in qualifying experts is difficult to
justify on legal or policy grounds. If brain surgery is the practice of
medicine, as one might reasonably conclude, permitting a self-declared
brain surgeon who is not a licensed physician to be qualified as an
expert on brain surgery because the judge or jury can assess the
probative value of this witness' testimony flouts the decision to
restrict the practice of medicine to those who have satisfied the
licensure requirements. Whereas licensure alone is not sufficient to
demonstrate the requirements for an expert's
competence/qualifications, the decision to require licensure for those
activities is a decision that licensure is necessary for
competence/qualifications. Licensure is sensibly a floor for finding an
expert qualified in a field that is subject to licensure.

The other line of cases treats licensure and qualification as only
loosely related. These decisions treat qualification of an expert as a
question addressed to the sound discretion of the trial judge, who may
consider licensure as but one of many factors that bear on
qualifications including education, skill, and experience. These cases
simply relegate the absence of a license to practice in the relevant
discipline to the weight rather than the admissibility of the witness'
testimony.8 Under this line of cases, the legislative
regulatory schemes for professional practice apply only when they deal
directly with members of the public. Judges retain their common law
authority to determine who may testify as an expert in their courts
without regard to regulatory schemes that prescribe requirements for
practicing these professions. To the extent that these disparate lines
of cases share a common understanding of this issue, it is perhaps best
expressed by the following observation of the Supreme Court of
Delaware: "To the extent that licensing is necessary to qualify as an
expert, the requirement extends only to the witness' ability to
perform the evaluation with respect to which he or she is testifying.
That is licensing is necessary to the qualification of experts only
where the law requires a license to perform the evaluation that is
being offered in court."9

In some states, at least for psychologists, the relationship between
licensing laws and qualifications for forensic practice is directly
addressed by statute. In Maryland, for example, only a psychologist
"licensed under the `Maryland Psychologists Act' and qualified as
an expert witness may testify on ultimate issues, including insanity,
competency to stand trial, and matters within a psychologist's special
knowledge, in any case in any court."10 A psychologist
who does not possess the qualifications described in the licensing act
is not qualified as an expert on a defendant's lack of criminal
responsibility.11 Similarly, Illinois has a statutory
requirement that makes registration as a clinical psychologist a
qualification for a psychologist to testify as an expert.12
Thus, these statutes leave little doubt that in these states
psychologists offering testimony must be licensed or face
disqualification and criminal prosecution.

Consultations, Record Reviews, Depositions, and Trials

Jury consultation involves neither diagnosis and treatment nor the
evaluation, prevention, or remediation of a disorder; thus, it should
not be considered the practice of medicine or psychology. Moreover,
courts are not asked to rule on the qualifications of nontestifying
jury consultants, and thus the issue of out-of-state-licensed
psychiatrists and psychologists engaging in forensic practice is
unlikely to arise in that setting. Similarly, acting solely as a
consultant to an attorney on strategic decisions or witness preparation
should not be considered the practice of medicine or psychology, as it
entails neither treatment or diagnosis nor the evaluation, prevention,
or remediation of a disorder. The review of medical, psychological, and
other health care records to arrive at psychiatric or psychological
conclusions, including diagnoses, for out-of-state depositions or
trials by a psychiatrist or psychologist licensed only in another
jurisdiction is less clear. Deposition or trial testimony itself is
unlikely to be considered medical or psychological practice in most
states.

The real issue is the activity(s) that gave rise to that testimony. If
the activity that gave rise to that testimony entails diagnosis or
treatment, it should constitute the practice of medicine, and if the
activity entails evaluation, prevention, or remediation of a disorder,
it should constitute the practice of psychology. Thus, for example, a
psychologist not licensed to practice in Texas, who is retained by the
state to assess a sex offender's potential to benefit from a treatment
program, is engaged in the evaluation, prevention, or remediation of a
disorder. These acts constitute the practice of psychology for which a
Texas license is required. Alternatively, if these activities are
performed in another state in which the psychologist is licensed and
the psychologist simply presents by deposition or live testimony the
results of that out-of-state practice, local licensing requirements are
unlikely to preclude the admission of such testimony.13

These distinctions are not always applied as one might expect, however.
In Virginia, for example, the "practice of clinical psychology" is
statutorily defined to include "rendering expert psychological or
clinical psychological opinion."14 The definition of
medical practice for physicians in Virginia does not contain any
equivalent reference to forensic practice.15 Curiously, in
Fowler v. City of Manassas Department of Social
Services,16 a decision that did not make reference to
the definition of the practice of psychology as including rendering
expert opinions, the Virginia Court of Appeals rejected the
appellant's contention that the trial court erred by allowing into
evidence the testimony of the psychologist who had conducted an
evaluation without a license to practice in Virginia. The psychologist
evaluated two children in a termination of parental rights suit. The
appellate court stated: "We find neither authority nor need for an
additional requirement that an otherwise qualified professional called
as an expert witness must be licensed to practice in
Virginia."17

The psychiatrist or psychologist licensed in another jurisdiction who
examines a litigant without prior appropriate arrangements may not
encounter difficulties at deposition. At the time of trial, however,
the psychiatrist or psychologist may be challenged for violating the
state's medical or psychological practice laws. In other instances,
opposing counsel will challenge the unlicensed out-of-state expert
through a pretrial motion.

Consequences

In one unreported case, the prosecution accused a forensic
clinical social worker, offered by the defense in the sentencing phase
of a capital murder case, of committing a misdemeanor by examining the
defendant and collateral witnesses without an in-state clinical social
work license.18 The judge "resolved" the issue by
ordering the witness to evaluate the defendant and his family members.
However, the order raises an interesting question whether the judge's
order was valid in light of the state's licensing requirements.

If the psychiatrist or psychologist is found to have violated the
licensure laws of the state where he or she is performing forensic
services, civil penalties may be imposed or criminal charges filed.
Penalties imposed for licensure violations are reported to the National
Practitioner Data Bank. Disciplinary actions may be brought against the
psychiatrist or psychologist in the state where he or she is licensed
to practice.

The psychiatrist or psychologist who performs forensic services in a
state in which he or she is not licensed risks suit for negligence or
fraud. Although this outcome may seem far-fetched, the incidence of
malpractice claims against experts is increasing.19 The
risks associated with these claims are exacerbated when forensic
services are performed in a state where the expert is not licensed.
Professional liability insurance policies may not provide coverage for
malpractice claims against psychiatrists or psychologists who are found
to be practicing without a license. The Professional Liability
Insurance Policy20 sponsored by the American Psychiatric
Association excludes "]a]ny claim arising out of a Medical Incident
which took place or is alleged to have taken place while the Insured's
license or certification to practice or dispense controlled substances
was suspended, revoked, terminated or surrendered or from acts
committed in violation of a license or permit restriction." This
language appears to be fairly standard in professional liability
insurance policies, excluding coverage for claims made while practicing
without a license.

Risk Management

It is a relatively simple matter to avoid the anguish and turmoil
of summary dismissal from a case or the professional and legal
consequences of unwittingly practicing without an in-state license.
Obviously, the first step is to recognize that performing an
unlicensed, out-of-state psychiatric or psychological examination can
have adverse professional and legal consequences. The forensic
psychiatrist or psychologist should openly discuss the problem of
licensure with the out of state attorney at the time of retention. The
attorney, who may be unaware that potential licensure problems exist,
should investigate the legal issues surrounding an unlicensed,
out-of-state examination. Often a local physician or psychologist has
been retained by the attorney. Although contrived, the local physician
can legitimately request a consultation from the out-of-state
psychiatrist, just as the local psychologist can request a consultation
for the out-of-state psychologist. Some supervisory arrangements can be
problematic; for example, a general physician does not have the
training to supervise a psychiatrist, and a supervisory relationship
arranged with a local psychiatrist could be exploited by opposing
counsel as a sham transaction. Retention and consultation with an
attorney alone will not be likely to meet a state's licensure
exemption clause for a physician licensed in another state to practice
medicine in that state.

The forensic psychiatrist or psychologist should request a copy of the
relevant state practice code to study the definition of medical or
psychological practice and the relevant exceptions for out of state
practitioners. Expansive definitions may include various aspects of
forensic practice, thus requiring the practitioner to obtain a license
or an exemption for services other than an examination. Adherence to
the state's practice code will preempt the charges and complications
of practicing without a license. However, merely obtaining the
litigant's consent to an examination that also contains a statement
that no doctor-patient relationship is being created will not immunize
the psychiatrist from licensure civil and criminal penalties, as these
requirements are not contractually based but stem from the state's
police power to protect its citizenry from incompetent or unqualified
practitioners.

If the court requests the out-of-state psychiatrist or psychologist to
conduct an examination, the expert should disclose his or her licensure
status and seek a ruling on the applicability of state licensing laws
to the provision of the expert testimony. Similar precautions apply for
psychiatric or psychological examinations conducted in out-of-state
jails and prisons. Clarification of licensure issues should be sought
from the corrections authorities through the licensing agency or the
state's attorney general.

Conclusions

The fast-growing subspecialties of forensic psychiatry and
psychology are stimulating and challenging. However, they are also full
of pitfalls for the unwary. Conducting out-of-state examinations or
even providing testimony without possessing a license to practice in
that state means risking adverse professional and legal consequences.
The awareness that licensure problems may exist and that there are
appropriate ways to conduct out-of-state examinations without incurring
legal violations provides a ready tool for limiting the forensic
psychiatrist and psychologist's risk exposure.

Perhaps the more perplexing questions relate to the position that
courts, legislatures, and regulatory agencies should take on these
issues. If satisfying these state licensing requirements is at best a
revenue measure or an attempt to limit out-of-state competition while
not addressing the quality of the resultant testimony, we should not
ultimately expect courts to regard this issue seriously. Alternatively,
if the legislature and regulatory agencies take seriously the policing
of mental health professionals' forensic as well as therapeutic
activities, there is reason to expect more than a pro forma
response from the courts.